dissenting. I think tbe learned judge in tbe Superior Court properly sustained tbe motion to nonsuit, and tbat in doing so be followed tbe decisions of this Court.
Tbe evidence of tbe plaintiff shows him to be a grown man, entirely familiar with conditions necessarily prevailing on tbe defendant’s switching yards. He was a “bandy man” or messenger in tbe round bouse, and was directed by bis boss to take a message to tbe storeroom for supplies. On bis way plaintiff came to a track on wbicb was standing a train of eighteen freight cars. At one end of tbe train was a switching engine under steam plainly engaged in switching and handling these cars.
*221When plaintiff reached this train on bis way to the storeroom, instead of going around tbe end of the train about one hundred feet further, he attempted to pass between the coupled cars in order to reach the other side, and was hurt by the engine backing just at the moment he was crawling under the drawheads.
The principle has been laid down by almost every court in this country and by text-writers, and adhered to with undeviating uniformity, that one who attempts to cross the track between the cars of a train, which he either knows, or might by observation see, is likely to move at any moment, is guilty of such gross negligence, if not recklessness, that he cannot recover if injured. Beach Oont. Neg., 40, 258, and cases cited. R. R. v. Kendrick, 40 Mass., 374; R. R. v. Henderson, 43 Pa. St., 449; R. R. v. Pinchin, 112 Ind.
“It is a danger so immediate and so great that he must not incur it.” Ranch v. Lloyd, 31 Pa. St., 358. In R. R. v. Copeland, 61 Ala., Chief Justice Stone characterizes such an attempt as “negligence bordering on recklessness.” So does the Court of Appeals of Maryland. Lewis v. R. R., 38 Md., 588.
This Court unanimously held in Beck v. R. R., 149 N. C., 168, that “When it appears that plaintiff’s intestate was injured by attempting to go between cars of defendant’s train, on a live track in use, and that he could easily have walked around the train by going ninety feet and have avoided injury, the act constitutes such contributory negligence as bars recovery.”
It must be admitted, as it is manifest from all the authorities, that the engineer owes no duty whatever to keep a lookout for .persons near his train to see if they go in between the cars, and he is not chargeable with negligence for failing to do so. The engineer has a right to assume that a person approaching his train or standing alongside of it will not venture between the ears, an act which has been universally denounced as reckless. If, as plaintiff contends, he was seen by the engineer while he was walking along near the cars, whistling, then the engineer was not required to watch him, on the supposition that he might crawl between the cars on the bumpers. The engineer had the right to assume that, seeing the danger, he would not voluntarily rush into it. Upon exactly the same principle it is held *222that an engineer of a train seeing a man walking ahead on the track, may reasonably expect that he will step off. Beach v. R. R., 148 N. C., 153.
It being thus demonstrated that the engineer owed plaintiff no duty to watch his movements to see if he went between the cars, and had the right to assume that plaintiff- would not attempt so foolhardy and reckless an act, there is only one theory left upon which the engineer or the company can be held liable, and that is that the engineer actually knew that plaintiff was between the cars and in a position of peril at the moment he backed his engine. It is not a question of whether by the exercise of reasonable care and watchfulness the engineer might have known it,’for he was not required to keep a lookout for any such purpose.
In other words, it is contended that the engineer, knowing plaintiff’s perilous position, actually caused the injury by backing the cars on him.
I regret sincerely that a majority of my brethren think that such an inference may be fairly and legitimately drawn from the plaintiff’s testimony. Common humanity forbids that any such imputation should be cast upon the engineer unless the evidence fully warrants it, for if such be true, then not only is the company liable for the damage, but the engineer himself would be guilty of either murder or manslaughter had the plaintiff been killed. The evidence relied upon to support this theory is confined to plaintiff’s own testimony, and is so meagre that I quote it verbatim. Plaintiff stated that, as he approached this train: “I saw the engine standing in front of the cars fixing, to shift them;” I saw a man sitting in the window of the engine, he had his head right toward me, and afterwards I got up between the cars going on towards the other side when the engine struck the cars and knocked me towards the left.”, Again, “I don’t know the engineer. He was looking toward me with his cap pulled down in front of his face. I did not hear any signal at all; if anything blew or rung did not hear it. When cars struck I was crawling under the drawheads between the cars.” This is all the evidence contained in the record relied upon to warrant a recovery.
*223It is not contended that it was the duty of the engineer to blow his whistle or ring his bell for the purpose of keeping persons from going between the cars. And it must be borne in mind that it is not a question as to whether the engineer might by close lookout have seen plaintiff as he started to “crawl under the drawheads between the cars,” for he had a right to assume that no grown man in possession of his faculties would attempt so reckless an act, and he was therefore not required to keep any such lookout.
The question is, does the evidence quoted justly warrant the inference that the engineer knew plaintiff was between the cars, and knowing it, backed his engine against the train and injured him?
It is inconceivable to think that the engineer would have done such a thing, and no such inference is warranted from the mere fact that at one time he was looking “towards plaintiff with his cap pulled down in front of his face.”
My brethren fail entirely to note that plaintiff does not state that the engineer was looking at him when he jumped in between the cars. Plaintiff says that he saw the engineer in the window of his engine with his head towards plaintiff, “and after-wards I got up between the cars going on towards the other side when the engine struck the cars.” How long after he saw the engineer before he entered between the cars plaintiff does not say. The engineer may have been looking towards plaintiff one moment and turned his head the next. He was not required to continue to look towards plaintiff, or he may have looked towards him and yet never have noticed him. The engineer may have been looking towards plaintiff and he may have seen him approaching the train, but that is no evidence he saw him dive between the cars.
In fact our observation teaches us that an engineer in his seat in the cab cannot see a man half way down his train go between the cars. When he saw plaintiff approaching the train the engineer was not required to keep his eye on him. He had a right to suppose that plaintiff, or any other sane man, standing right by the train, would walk around it rather than crawl under it, *224especially when, as plaintiff admits, be saw tbe engine fixing to shift tbe cars.
Tbe act of diving between cars for tbe purpose of crossing over to tbe other side takes but a few seconds. It is such an instantaneous act that if tbe engineer bad seen it at same time be opened bis throttle, be could not have stopped quick enough to prevent injury.
From plaintiff’s own testimony it is apparent that when be jumped between tbe cars tbe engineer was then about starting to back bis engine. Tbe two acts must have been almost simultaneous, else plaintiff, an active man, would have gotten through without hurt.
I think tbe inference which tbe majority of tbe Court thinks can possibly be drawn from this evidence is unwarranted and is unjust to tbe engineer. I am willing to bold engineers up to tbe full measure of their duty and to bold their employers responsible for their negligence, but I am not willing to place an imputation of gross negligence upon their good name upon such flimsy evidence as is presented in this record.
It may be said that this is not a suit against tbe engineer and that be has no interest in tbe result as tbe railroad company will have to foot tbe bill.
But tbe engineer has a direct personal interest in tbe result, for it seriously affects bis professional standing. While this can have no effect upon tbe members of this Court, it should at least make us careful not to place a construction upon evidence so injurious to tbe engineer unless the evidence clearly warrants it.
Mb. Justice Waleee concurs in tbe dissent.